Budelmann, Kai

Graf, Jan-Phillip

English

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A pushback against international law?Jan-Phillip Graf, Kai Budelmann 2020-12-08T14:30:55In late October, an international group of investigative journalists released a detailedreport about the involvement of Frontex, the European border security agency, in so-called pushbacks in the Mediterranean. Though not a legal term, ‘pushbacks’ referto the highly controversial practice of intercepting vessels filled with migrants as theyenter the territorial waters of a state and pushing them back, sometimes with verydangerous maneuvers, into another jurisdiction. Since March 2020, allegations ofsuch activities have been made against the Greek Coast Guard (see here, here,and here). The October report, for the first time, provided evidence that Frontex wasdirectly involved in pushbacks of migrant vessels from Greece to Turkey.How was Frontex involved?In at least four cases Frontex units were located close to pushbacks conducted bythe Greek Coast Guard (see here, here and here). Although the Frontex officers didnot actively support the Hellenic Coast Guard, it is fair to assume that they observedthese dangerous activities without reporting them. Two more incidents stand out.On April 28, 22 migrants were put on a life raft on the Greek island of Samos andtowed towards the Greek-Turkish sea border in the middle of the night where theGreek Coast Guard left them afloat. This incident was live-streamed to the Frontexheadquarters by a surveillance plane. On June 8, a Romanian Frontex vessel wascaught on camera blocking a dinghy close to Lesbos. Later, the same ship startedgenerating waves to push the migrants’ boat towards the Turkish coast.Non-refoulement = no pushbacks?Article 33(1) of the 1951 Refugee Convention contains the cardinal principle of non-refoulement, which literally translates to ‘no pushbacks.’ Accordingly, states areprohibited from “expel[ling] or return[ing] a refugee in any manner whatsoever tothe frontiers of territories, where his life or freedom would be threatened on accountof race, religion, nationality, membership of a particular social group or politicalopinion.” This principle has evolved into a norm of customary international law (seehere pp. 149-163) which does not allow reservations or derogation during situationsof a mass-influx of migrants (see here, here, and here). It needs to be emphasizedthat the obligation of non-refoulement also exists in international human rights law(article 3 CAT, article 7 ICCPR, article 3 ECHR, article 19(2) CFR)  and under EU-law, partly, with even higher requirements and stricter enforcement mechanisms.The personal scope of article 33(1) covers all refugees as defined in article 1(A)and also extends to asylum seekers until they receive a final determination of theirrefugee status. Concerning the territorial scope, all cases under scrutiny in this posttook place within Greece’s territorial sea which makes the Refugee Conventiondirectly applicable. However, pushbacks often occur outside states’ territories, forinstance, on the high seas. In this vein, article 33 has been interpreted as applying- 1 -wherever states have effective control over persons seeking asylum or when itsactions directly affect them. Arguably, this is the case when coast guards activelypush back boats filled with asylum seekers.For the above reasons, it seems clear that Greece and the Frontex units were underan obligation not to expel or return the asylum seekers to a place where they wouldhave a well-founded fear of persecution. To establish, however, whether such a riskwas present, an individual assessment of each asylum seeker’s claim to refugeestatus needs to be conducted (see here pp. 330-344). This procedural safeguard isimplicit in the non-refoulement principle, since the obligation not to return persons toa place where their lives or freedom would be threatened can only be discharged ifthat risk is assessed in the first place. The Frontex officers and Greek coast guardclearly did not comply with this obligation when blocking and pushing back boatswithout conducting a proper status determination procedure for the individualsaboard, i.e. assessing whether they were refugees or not.Proponents of pushbacks regularly argue that Turkey is a safe third country whereasylum seekers do not have to fear any persecution. Thus, refoulement to Turkeyis unproblematic. Apart from questioning the classification of Turkey as a ‘safethird country,’ we argue that the pushbacks were still illegal since Turkey hasa record of returning asylum seekers to other countries without adhering to thenon-refoulement principle itself (e.g. here and here). These so-called indirect orchain-refoulements are also prohibited by international law. Although article 33 is notdirectly applicable, states which return asylum seekers to a third country knowingthat this state regularly violates the non-refoulement principle, will be complicit in thethird state’s internationally wrongful conduct.Duty to assist persons in distress at seaThe pushbacks in our cases were also inconsistent with the law of the sea. Inparticular, pushbacks contravene the customary obligation of states to assistpersons in distress at sea which is codified in Art. 98(1) of the United NationsConvention on the Law of the Sea (UNCLOS):1. Every State shall require the master of a ship flying its flag […]:a. to render assistance to any person found at sea in danger of being lost;b. to proceed with all possible speed to the rescue of persons in distress, if informedof their need of assistance, in so far as such action may reasonably be expected ofhim;While the scope of the ‘duty to assist persons in distress’ extends to all ships whichhave reasonable means to provide salvage without endangering themselves,it needs to be clarified which situations ultimately qualify as ‘distress.’ Relevantjurisprudence and the 1979 Convention on Maritime Search and Rescue define a“distress phase” as “a situation wherein there is a reasonable certainty that a person,a vessel or other craft is threatened by grave and imminent danger and requiresimmediate assistance.”- 2 -The EU signed UNCLOS in 1984 (see here p. 51) and deposited an instrumentof formal confirmation under part XI, which is comparable to a ratification, in 1998(see here p. 227). Thus, the EU carries all rights and obligations under UNCLOSwhich are within the competences transferred to it by its members. Moreover, EUorgans are also bound by the obligation to provide assistance to persons in distressunder customary international law and by force of EU law (see paragraph 20 of EURegulation 2019/1896).In all instances, Frontex forces found unseaworthy boats which were severelyovercrowded and without adequate propulsion. The mere state of these vesselsclearly indicated an imminent danger to the migrants’ lives and the vessels’ overallsafety. Despite its obligation to provide assistance, Frontex patrol boats did notintervene, or even worse, put the vessels at risk by unnecessarily creating waves.Therefore, the pushbacks in which Frontex was involved constitute a clear violationof the duty to assist persons in distress at sea.Who is responsible?The illegal pushbacks were a joint effort of the Greek Coast Guard and Frontex coastguards from Portugal and Romania on a Romanian and two Portoguese borderpatrol boats. In this complex scenario, it is worthwhile looking at how the involvedstates and international organizations can be held responsible for violating theirinternational obligations.Under the law of international responsibility, Greece is directly responsible forall illegal acts by its Coast Guard, which is a de jure state organ, in accordancewith article 4(1) of the articles on state responsibility (ASR). It gets more difficult,however, regarding the Frontex vessels at the scene. The main problem is thatthe officers were under no exclusive control by a single state or internationalorganization. During Frontex missions, the command is shared between thehost state (Greece), the home state (Portugal and Romania), and the Frontexheadquarters in Warsaw. Still, we argue that Romania and Portugal incur directresponsibility for the internationally wrongful conduct of their officers under article4(1) of the ASR, despite their status as Frontex units. The boats are sailing undernational flags, the officers wear their national uniforms, and receive substantiveinstructions from their home states. Therefore, the mere label as a Frontex unitcannot shield Portugal and Romania from international responsibility.Greece, Portugal, and Romania carrying direct responsibility does not get Frontexoff the hook. Although it is not an international organization by itself, in the senseof article 2(a) of the ARIO, Frontex rather counts as an organ of the EU. Frontexand its officers may not be directly responsible for the illegal pushbacks, but wenevertheless argue that the EU is at least complicit in those internationally wrongfulacts under article 14 of the ARIO by providing aid and assistance to the mainperpetrators. Thus, the EU incurs derivative responsibility for the complicity in illegalpushbacks by Frontex units in the Mediterranean.Conclusion- 3 -Only thanks to courageous journalists we learned that several EU members underthe coordination of Frontex orchestrated pushbacks in the Mediterranean. Thispractice is a blatant violation of the principle of non-refoulement and the duty toassist persons in distress at sea. The secrecy and indifference with which pushbacksare executed is shocking and other scholars have argued that they may classifyas torture and, at some point, even amount to crimes against humanity. As aconsequence, we should continue emphasizing that the pushbacks happening rightnow are clear and unacceptable violations of international law. We should furtherdemand from our politicians that our coast guards and the EU cease their complicityand pressure Greece to stop its illegal activities immediately.- 4 -

A pushback against international law?

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A pushback against international law?

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